McLean v. Equitable Life Assurance Society of United States

• Decision Date: 11 December 1884
• Docket Number: 10,984
• Parties: McLean, Administrator, v. The Equitable Life Assurance Society of the United States
• Court: Indiana Supreme Court

100 Ind. 127

McLean, Administrator, v. The Equitable Life Assurance Society of the United States

No. 10,984

Supreme Court of Indiana

December 11, 1884

Petition for a Rehearing Overruled April 23, 1885.

From the Vigo Circuit Court.

W. E McLean, C. F. McNutt, J. G. McNutt, N. G. Buff and J. T Pierce, for appellant.

J. M Allen, W. Mack, H. C. Nevitt, S. C. Davis and S. B. Davis, for appellee.

OPINION

Colerick, C.

This action was originally brought by Lucius Ryce, as executor of the last will of his son William S. Ryce, deceased, to recover an alleged balance due upon an insurance policy issued by the appellee upon the life of said William S. Ryce, for the sum of $ 10,000, payable on the 25th day of July, 1888, to the assured, if he should then be living, and in the event of his death before that time, then to his executors, administrators or assigns, in sixty days after due notice and proof of his death. During the pendency of the action said executor died, and the appellant, as the administrator de bonis non of the estate of the assured, was substituted as the plaintiff therein.

The complaint consisted of three paragraphs, to which separate demurrers were overruled. A motion was made to strike out parts of the complaint, which was also overruled, and thereupon the appellee answered the complaint, to which answer a reply was filed. The issues so formed were submitted to a jury for trial, and after the appellant had introduced his evidence in support of the complaint, the appellee demurred to the evidence, and the demurrer was sustained by the court, to which ruling the appellant duly excepted, and thereupon final judgment was rendered in favor of the appellee, from which the appellant appeals, and assigns as error, for its reversal, the ruling of the court in sustaining said demurrer.

The appellee has filed an assignment of cross errors, in which it assigns as errors the rulings of the court upon the demurrers to the several paragraphs of the complaint, and on the motion to strike out parts of the complaint. It is unnecessary to refer more specifically to the pleadings in the action, except the complaint.

The first and second paragraphs, in their material averments, were, in substance, alike. They both averred the issuing by the appellee of the policy of insurance above referred to, and its acceptance by the assured, who, until his death, observed and performed all of the conditions of the policy on his part, and the appointment and qualification of the plaintiff as such executor, and the furnishing by him of the proof, required by the policy, of the death of the assured, and alleged that the appellee, by certain false and fraudulent representations made by its authorized agent which were fully recited therein, induced the plaintiff to settle the claim existing in favor of the estate of the assured upon said policy, by accepting and receiving in full payment thereof $ 7,000 less than the amount actually and legally due thereon, and prayed judgment against the appellee for the difference between the sum so paid and the amount that was due on the policy.

The third paragraph was founded on the policy of insurance, but, unlike the other paragraphs, failed to aver any excuse for not making the policy, or a copy thereof, a part of the pleading.

The vital question presented for our consideration is, Did the court err in sustaining the demurrer to the evidence? Before presenting a synopsis of the evidence, it is proper, if not essential, for us to advert to certain rules that have been established for the guidance of courts in the consideration by them of the evidence in a cause, where, as in this case, a demurrer to the evidence has been interposed. The effect of the demurrer is to concede the truth of all the facts of which there is any evidence against the demurring party, and, if there is a conflict in the evidence, prevents him from insisting upon the benefit of any evidence in his favor as to the disputed facts. Willcuts v. Northwestern Mutual Life Ins. Co., 81 Ind. 300. The demurrer admits all facts which the evidence tends to prove, and all such inferences as can be reasonably drawn therefrom. Willcuts v. Northwestern Mutual Life Ins. Co., supra; Radcliff v. Radford, 96 Ind. 482. It excludes from consideration the evidence of the party demurring--Ruddell v. Tyner, 87 Ind. 529--which is to be treated as withdrawn--Adams v. Slate, 87 Ind. 573--as the evidence of his adversary alone is involved in the issue raised by the demurrer. Fritz v. Clark, 80 Ind. 591.

If, upon such evidence, with every reasonable inference which may be drawn therefrom, a jury might rightfully find against the party demurring, the demurrer should be overruled--Hagenbuck v. McClaskey, 81 Ind. 577, Nordyke & Marmon Co. v. Van Sant, 99 Ind. 188 [100 Ind. 131] --as the party by demurring admits all facts of which there is any evidence--Trimble v. Pollock, 77 Ind. 576--and consents that whatever reasonable inferences can be shall be drawn from the evidence against him--Ruff v. Ruff, 85 Ind. 431--and the court is bound to take as true all the facts which the evidence tends to prove, and such inferences from them as the jury could have fairly drawn, though the jury might not have drawn them. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261. But the court is not required in considering the demurrer to weigh or reconcile conflicting evidence, nor consider that which favors the party demurring when it is in conflict with other evidence against him. Indianapolis, etc., R. R. Co. v. McLin, 82 Ind. 435. The demurrer waives objections to the admissibility of the evidence--Miller v. Porter, 71 Ind. 521--and no advantage can be taken of any defect in the pleadings as a reason for sustaining the demurrer. Lindley v. Kelley, 42 Ind. 294. As sustaining a demurrer to evidence works a final disposition of the case, the court does not err in overruling such a demurrer whenever there is testimony which, although weak and inconclusive, fairly tends to prove every material fact, and is sufficient to justify a court in overruling a motion to set aside a verdict based thereon. Kansas Pacific R. W. Co. v. Couse, 17 Kan. 571. And if from the evidence a jury might infer that the plaintiff's action should be sustained, the demurrer should be overruled, and the plaintiff should have judgment. Wright v. Julian, 97 Ind. 109.

Keeping in view and applying to this case, so far as they are applicable, the rules to which we have referred, we will briefly present the facts in the case.

It appears by the evidence that the assured was, for many years before and at the time of his death, a dry goods merchant in the city of Terre Haute, Indiana. He died at Grand Haven, Mich., on the 18th day of August, 1877, of chronic inflammation of the stomach, with which he had been afflicted for two or three years immediately preceding his death. The policy of insurance referred to in the complaint was issued to him by the appellee on the 2d day of August, 1865, upon which he paid to the appellee each year thereafter until his death, covering a period of twelve years, the annual premiums thereon, as they became due and payable, amounting in all to $ 4,680.80. No evidence was introduced even tending to prove that any misrepresentations were made by him in his application, or otherwise, to secure the issuing of the policy, or that he in any manner after its issue violated any of its conditions. He was about forty-three years old at the time of his death. By the provisions of his will he appointed his father, Lucius Ryce, now deceased, the executor thereof, and he, after first qualifying as such executor, furnished appellee with the proof required by the policy, as to the time, place and cause of the death of the assured. About the 19th day of October, 1877, the appellee sent an agent to Terre Haute, Indiana, where the executor resided, to adjust the claim, and, for that purpose, the agent called several times upon the executor, and had interviews with him in relation to its adjustment. The only evidence as to what transpired between them at these interviews was rendered by the executor, who stated that the agent informed him that the policy was not "worth a cent;" that he had been to Grand Haven, Mich., where the assured died, and discovered "something" that "was fatal to the policy," and had secured sufficient evidence "to defeat the policy," and that the company would not pay the claim, but would contest the same. After the agent had impressed the executor with the belief that the company would not pay the claim, and that the company could, and would, defeat its collection, he stated to the executor that he thought it would be right for the company to pay the sum that the assured had paid to the company, with interest thereon; and after computing the amount thereof, he offered to pay the same in full payment of the claim, which offer the executor accepted, and surrendered the policy. He also testified that at the time these interviews occurred and the settlement was made, he was "in great distress of mind," and "was hardly fit to do business," and "did not know what he ought to do," and that debts were troubling him which he wanted to pay but could not, and that he "had sacrificed everything he had of his own to pay the debts," and that he had been induced to accept the offer of settlement by reason of the representations that were made by the agent.

The facts to which the executor testified, above set forth, were not disputed, nor was his evidence in conflict with, or impaired by, any other evidence rendered in the cause, but on the contrary, was strongly supported and corroborated in many of its essential features by other evidence. A number of prominent business men of the ...